Mozart of Legal Writing: Clerks Reflect on Posner’s Career

September 6, 2017

By Patrick L. Gregory, Bloomberg BNA

The most enduring part of Judge Richard A. Posner’s legacy could be his writing style, his former clerks say.

Posner retired abruptly Sept. 2 from the U.S. Court of Appeals for the Seventh Circuit, where he served for more than 35 years after President Ronald Reagan nominated him in 1981. He served as chief judge from 1993 to 2000.

Clerking for Posner was “like being a music student who had the chance to work with Mozart,” former clerk Richard W. Porter told Bloomberg BNA by email.

“The sweeping breadth and depth of Judge Posner’s interest, inquiry and work is extraordinary, but his pragmatic, simple and approachable opinions are the lasting gift of his genius,” Porter, now a partner at Kirkland & Ellis LLP, Chicago, said.

His subsequent decision to move away from a “more laissez-faire approach” to cases “really speaks to his open-mindedness,” former clerk Carolyn Shapiro, now a professor at Chicago-Kent College of Law, told Bloomberg BNA by telephone.

The Seventh Circuit announced Posner’s unexpected retirement on the evening of Friday, Sept. 1, effective the next day.

Law School Favorite

Posner is a senior lecturer at the University of Chicago Law School, where he’s been a part of the faculty since 1969.

His appeal goes far beyond the school that describes itself as the “birthplace of law and economics.”

“Students, lawyers, judges and, yes, ordinary Americans will read his opinions, and his influence will radiate for generations to come,” Porter said.

Posner’s “crisp, eloquent opinions are read in nearly every law school class,” Schwartz said.

Posner wrote more than 3,300 of them, the judge said in his statement announcing his retirement.

But he also “wrote book after book” and “article after article,” Shapiro said.

It was “sort of nonstop,” she said.

Economics, Evolution

Though he wrote all of his own opinions, Posner was “really open to hearing” the thoughts of others, Shapiro said.

“Despite being a genius, he is fully aware that he has limited knowledge of the world and may be mistaken in his views,” former clerk Edward Morrison, now a professor at Columbia Law School, New York, told Bloomberg BNA by email.

Posner showed his open-mindedness in his book, “A Failure of Capitalism,” Shapiro said.

He initially took a laissez-faire approach to cases, as “one of the real founders of the law and economics movement,” she said.

But the 2008 financial crisis changed Posner’s thinking, she said.

Posner wrote that the crisis occurred “because we didn’t have adequate regulation” of markets, Shapiro said.

Instead of a philosophical discussion, the judge wanted “me to dissect the facts of recent cases and extract empirical patterns that characterize situations in which courts find reckless indifference,” he said.